JPF Med. Servs., P.C. v Hereford Ins. Co. (2020 NY Slip Op 51372(U))

Goldberg, Miller & Rubin (Timothy Bishop of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered October 16, 2018, deemed from a judgment of that court entered November 2, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 16, 2018 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,673.69.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered October 16, 2018 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered October 16, 2018 denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification, and granting plaintiff’s cross motion for summary judgment. A judgment was subsequently entered on November 2, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant demonstrated, prima facie, that it had timely mailed initial and follow-up requests for verification (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that it had not received the requested verification, and that it had timely [*2]denied plaintiff’s claims on that ground (see 11 NYCRR 65-3.5 [o]). However, the affidavit submitted by plaintiff in opposition to defendant’s motion was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In light of the foregoing, there is a triable issue of fact as to whether plaintiff provided the requested verification.

Accordingly, the judgment is reversed, so much of the order entered October 16, 2018 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.